IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

ANTI-SMOKING ALLIANCE dba PINK 

LUNG BRIGADE, a Washington nonprofit 

corporation,

No. 52458-9-II

Respondent,

v.

TACOMA-PIERCE COUNTY DEPARTMENT OF HEALTH and HEALTH BOARD, 

a division of Pierce County and the City of 

Tacoma; and VICTORIA WOODARDS, 

RICK TALBERT, PAT MCCARTHY, PAT 

JOHNSON, CONNIE LADENBURG, 

MARTY CAMPBELL, STEPHEN COOK, 

M.D., DEREK YOUNG, KERI ROONEY, 

LARGO WALES, JIM MCCUNE, LAUREN 

WALKER, and MARK GRUBB, M.D., 

Tacoma-Pierce County Health Board members 

in their official and individual capacities,

PUBLISHED OPINION

 Appellants.

GLASGOW,J.—The Tacoma-Pierce County Board of Health adopted regulations regarding

“Restrictions on the Use of Vapor Products.”1 These regulations included restrictions on tasting 

and sampling in retail stores, as well as a ventilation requirement if in-store tasting is offered. The 

Anti-Smoking Alliance dba Pink Lung Brigade, a nonprofit corporation that includes vaping 

retailers, sought an injunction blocking enforcement of the new regulations on the grounds that 

 

1 Tacoma-Pierce County Bd. of Health, Environmental Health Code (EHC), ch. 9 (July 6, 2016) 

[https://perma.cc/FCD3-H9VJ]; Clerk’s Papers at 542.

Filed

Washington State

Court of Appeals

Division Two

June 2, 2020
No. 52458-9-II

2

they are preempted by state law prohibiting local regulation of the promotion and sale of vapor

products. The trial court granted the injunction, concluding that state law prohibited local 

governments from regulating vapor shops in this way.

The Tacoma-Pierce County Board of Health and Tacoma-Pierce County Health 

Department (collectively Board) appeal, arguing that the regulations are a valid exercise of the 

Board’s authority under a statute expressly allowing it to regulate the use of vapor products in 

indoor public places. The Board also argues that the injunction was improperly granted because

the Alliance did not identify a clear legal or equitable right at issue, a prerequisite to obtaining an 

injunction. Finally, the Board argues that some of the trial court’s findings of fact related to harm 

Alliance members would suffer under the regulations were not supported by substantial evidence.

The legislature has expressly prohibited local regulation of vapor product promotions and 

has expressly required that tasting and sampling be permitted. The more general express authority 

granted to local governments to regulate indoor vaping does not overcome these specific 

prohibitions. Because tasting and sampling are forms of vapor product promotions, the Board is 

preempted from regulating those activities within vapor shops. The Alliance established a clear 

legal and equitable right to be free from such regulation, as well as actual and substantial injury 

should the regulations go into effect. We affirm the trial court’s grant of the injunction.

FACTS

In January 2016, the Board adopted EHC chapter 9 regulating the sale, use, and availability 

of vapor products. The Alliance objected to a number of the new requirements and filed suit to 

enjoin their enforcement. In June 2016, the legislature enacted chapter 70.345 RCW, which 

governs the vaping industry in Washington. Relevant to this case, the statute expressly prohibits
No. 52458-9-II

3

political subdivisions from “adopting or enforcing requirements for the licensure and regulation of 

vapor product promotions and sales at retail.” RCW 70.345.210(1). The statute also generally 

prohibits political subdivisions from regulating the use of vapor products in outdoor public places. 

RCW 70.345.210(2). However, the statute permits political subdivisions to regulate the use of 

vapor products in indoor public places so long as they permit the use of vapor products for tasting 

and sampling in retail outlets. RCW 70.345.150(1)(b), .210(3).

After a public comment period, the Board revised EHC chapter 9, “Restrictions on the Use 

of Vapor Products.” Clerk’s Papers (CP) at 542. The amended regulations’ purpose “is to provide 

for and promote the health, safety, and welfare of the general public.” EHC 9(2)(B); CP at 543. 

The Board made several findings related to the public health risks posed by vapor products, 

particularly as they relate to youth and secondhand exposure to vapor emissions, and the need for 

a comprehensive regulatory framework addressing those risks. EHC 9(3). 

EHC 9(5)(A) provides that “[n]o person may use vapor products in an indoor public place 

or in any place of employment,” except as permitted in EHC 9(6).

2 CP at 547. EHC 9(5)(B) 

prohibits the “use of vapor products in any outdoor public place where children congregate.” CP 

at 547. Section 6 provides that no retail outlet may offer tastings of vapor products to the general 

public unless certain conditions are met. Among other things, section 6 requires that vapor shops 

have a specific type of ventilation system, that e-liquid offered for tasting must be nicotine-free,

that tastings may only occur at the sales counter, and that no more than three customers may taste 

at one time. EHC 9(6)(B), (D), (F). Any violation of section 6 is a misdemeanor. EHC 9(6)(I). 

 

2 The Alliance did not challenge this general ban on indoor vaping in public places or places of 

employment, and it is not at issue in this appeal except insofar as it relates to vapor shops. 
No. 52458-9-II

4

Section 9 authorizes local health officers to enforce the regulations through a right of entry and by 

working with the Washington State Liquor and Cannabis Board to conduct inspections. EHC 

9(9)(A)-(B). EHC 9(9)(C) also outlines a schedule of escalating administrative civil penalties of 

up to $2,000 for violations. 

In response to the amended regulations, the Alliance filed an amended complaint seeking 

an injunction enjoining the Board from enforcing the portions of the regulations that impacted

vapor shops, arguing that those provisions were preempted by state law. The Board brought a 

motion arguing there were no remaining genuine issues of material fact, but the trial court 

ultimately set a hearing to fully resolve the Alliance’s request for permanent injunction with an 

opportunity for any necessary testimony.3

The Alliance explained that it was asking for a permanent injunction preventing the Board

“from enforcing its rules and regulations impacting the sales and promotions of vapor product[s] 

in local retail vape shops.” CP at 1533. The Alliance submitted numerous declarations from its

members and vapor shop owners regarding the costs and practical barriers to complying with the 

regulations and the importance to their business model of promoting their products by providing 

tastings and samples. The Board submitted a competing declaration contending the costs of 

installing the required ventilation system were far less than the Alliance members claimed and that 

it was comparable to the system required for a restaurant kitchen. The Board also submitted an 

excerpted copy of its administrative record supporting the regulations. 

 

3 The Board had previously moved for summary judgment, but the trial court denied the motion 

with respect to the Alliance’s claims, and we denied discretionary review. After additional 

discovery, the Board again asserted there were no remaining genuine issues of fact. 
No. 52458-9-II

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After the hearing, the trial court entered findings of fact and conclusions of law. The trial 

court clarified that the Alliance’s challenge was limited to the portions of the regulations that: (1) 

required installation of a specific ventilation system, (2) limited the number of customers who 

could sample at one time, (3) limited the location of sampling to the sales counter, (4) prohibited 

samples containing nicotine, and (5) imposed penalties for violation of these restrictions. 

Relevant here, the trial court found that the ventilation system required by section 6 was 

costly and that it was not possible for some vapor shops to install it. The trial court also found that 

section 6’s tasting and sampling restrictions, specifically the prohibition on e-liquid containing 

nicotine, would harm vapor shops because at least 90 percent of sampling and sales of e-liquid 

contain nicotine and nicotine-free vapor cannot replicate the taste.

The trial court also made several legal conclusions regarding the interpretation and 

application of the relevant statutes. The trial court concluded that state law preempted section 5(A), 

which prohibited vaping in public places and places of employment, to the extent it related to vapor

shops; section 6, regulating tasting, in its entirety; and section 9, governing enforcement, as it 

related to the enforcement of section 6. The trial court relied on RCW 70.345.210(1), which

explicitly preempts local health departments from adopting or enforcing requirements for the 

regulation of vapor product promotions and sales at retail.

The trial court granted the Alliance a permanent injunction enjoining the Board from 

enforcing sections 5(A), 6, and 9 in any way that would impact the sales or promotions of vapor 

products or the licensure of vapor shops in Pierce County. The trial court ruled that state law 

conferred upon the Alliance and its members “clear legal and/or equitable rights” as vapor shop 

owners, that they established a reasonable fear of imminent violation of those rights, and that they 
No. 52458-9-II

6

would suffer immediate, substantial, and irreparable harm without an injunction. CP at 1725. The 

trial court also denied the Alliance’s request for attorney fees and costs, finding that the Board’s 

actions were neither in bad faith nor frivolous and that there was no recognized ground in equity 

to authorize such an award.

The Board appeals, arguing that the trial court erred in its legal conclusion that the 

regulations are preempted by state law, that the trial court erred in granting an injunction, and that 

the trial court’s findings of fact related to harm are not supported by substantial evidence.

ANALYSIS

I. PREEMPTION

The Board argues that the trial court erred in concluding that section 5(A) as it pertains to 

vapor shops, section 6, and section 9 as it pertains to section 6, are preempted by state law. We

disagree. 

A. Preemption Analysis

Article XI, section 11 of the Washington Constitution states: “Any county, city, town or 

township may make and enforce within its limits all such local police, sanitary and other 

regulations as are not in conflict with general laws.” “‘The scope of [a county’s] police power is 

broad, encompassing all those measures which bear a reasonable and substantial relation to 

promotion of the general welfare of the people.’” Emerald Enters., LLC v. Clark County, 2 Wn. 

App. 2d 794, 803, 413 P.3d 92 (2018) (alteration in original) (quoting State v. City of Seattle, 94 

Wn.2d 162, 165, 615 P.2d 461 (1980)). 
No. 52458-9-II

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We review constitutional preemption challenges de novo. Id. But we presume that an 

ordinance is constitutional, and a party challenging an ordinance bears the heavy burden of 

establishing that it is unconstitutional beyond a reasonable doubt. Id. at 803-04. 

“[A] state statute preempts an ordinance on the same subject if the statute occupies the 

field, leaving no room for concurrent jurisdiction, or if a conflict exists such that the statute and 

the ordinance may not be harmonized.” Lawson v. City of Pasco, 168 Wn.2d 675, 679, 230 P.3d 

1038 (2010). “A statute preempts the field and invalidates a local ordinance if there is express 

legislative intent to preempt the field or if such intent is necessarily implied.” Id. “In the absence 

of express intent, we may infer field preemption from the purpose of the statute and the facts and 

circumstances under which it was intended to operate.” Id.

4 When interpreting a statute, our goal

is to ascertain and fulfill legislative intent, giving effect to all of the language used by the 

legislature. Parkland Light & Water Co. v. Tacoma-Pierce County Bd. of Health, 151 Wn.2d 428, 

432, 90 P.3d 37 (2004); Hood Canal Sand & Gravel, LLC v. Goldmark, 195 Wn. App. 284, 298, 

381 P.3d 95 (2016).

B. The Challenged Regulations Are Expressly Field Preempted

1. The legislature expressly intended to preempt the field of vapor product promotions 

and sales at retail

RCW 70.05.060(3) broadly authorizes local health boards to enact local regulations “as are 

necessary in order to preserve, promote, and improve the public health and provide for the 

enforcement thereof.” However, RCW 70.345.210(1), which specifically governs local regulation 

of vapor products, provides: “This chapter preempts political subdivisions from adopting or 

 

4 Although the Alliance has argued both field preemption and conflict preemption, we address only 

field preemption. We need not reach conflict preemption.
No. 52458-9-II

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enforcing requirements for the licensure and regulation of vapor product promotions and sales at 

retail.”

RCW 70.345.210(2) prohibits political subdivisions from “regulat[ing] the use of vapor 

products in outdoor public places, unless the public place is an area where children congregate, 

such as schools, playgrounds, and parks.” RCW 70.345.210(3) allows political subdivisions to

“regulate the use of vapor products in indoor public places,” “subject to RCW 70.345.150.” RCW 

70.345.150(1)(b) specifically permits the use of vapor products “for tasting and sampling in indoor 

areas of retail outlets.”

The legislature did not intend to occupy the entire field of regulating vaping products and 

businesses because it expressly granted some measure of concurrent jurisdiction by permitting 

local governments to regulate the use of vapor products in indoor public places under RCW 

70.345.210(3). See Brown v. City of Yakima, 116 Wn.2d 556, 560, 807 P.2d 353 (1991). However, 

nothing prevents the legislature from expressly occupying a narrower field by more specifically

defining the contours of its intended preemption. Here, the legislature has expressly prohibited 

local governments from “adopting or enforcing requirements for the licensure and regulation of 

vapor product promotions and sales at retail.” RCW 70.345.210(1).

2. The challenged regulations are regulations on the promotion and sale of vapor 

products at retail

The Board argues the regulations are not preempted because the legislature expressly

granted local governments the authority to regulate the use of vapor products in indoor places

under RCW 70.345.210(3). Because the regulations emphasize that one purpose is to protect vapor

shop employees from harmful exposure to vapor, the Board reasons that limitations on vapor 

product uses within retail outlets fall within its expressly delegated authority under RCW 
No. 52458-9-II

9

70.345.210(3). The Board emphasizes that the regulations do not ban tasting and sampling but 

instead merely impose certain limitations while permitting the practice as an exception to the

broader ban on vaping in indoor public places. We disagree.

Although RCW 70.345.210(3) authorizes the Board to regulate the “use” of vapor products 

indoors generally, the Board’s authority in this matter is limited by the specific preemption 

language in RCW 70.345.210(1). The Board may not regulate the use of vapor products in indoor 

public places if such regulation establishes requirements for the promotion or sale of vapor 

products at retail. Even though EHC 9(6) does not ban tasting and sampling, it conditions offering

any tastings on complying with all of the requirements in section 6. This general prerequisite, along 

with the specific requirements related to sampling and tasting, amount to regulations on vapor 

product promotions and sales. See RCW 70.345.210(1).

The record supports the conclusion that tasting and sampling are an integral part of the 

promotion and retail sale of vapor products for the Alliance members. Several members stated that 

their businesses depend on offering samples in order to promote and sell their vapor products, 

particularly to customers looking to transition from smoking cigarettes to vaping. The trial court 

specifically found that the prohibition on e-liquid containing nicotine would harm vapor shops 

because at least 90 percent of sampling and sales of e-liquid contain nicotine. This finding 

recognizes that sampling and tasting are intertwined with the promotion and sale of vapor products.

Thus, EHC 9(6) imposes regulatory requirements on the promotion and sale of vapor 

products at retail by establishing that no retail outlet may offer tastings of vapor products unless 

certain requirements are met. Limiting the number of customers who can taste or sample at one 

time, limiting the location of tasting or sampling, and prohibiting samples containing nicotine all 
No. 52458-9-II

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regulate the promotion of vapor products contrary to RCW 70.345.210(1). EHC 9(6)(B), (D), (F). 

Indeed the trial court specifically identified the prohibition on nicotine in sample e-liquids as 

negatively impacting vapor product sales.

Although EHC 9(6)(B)’s requirement for a specific ventilation system is less clearly related 

to tasting and sampling, it is still a prerequisite to offering tastings and therefore also amounts to 

a regulation of vapor product promotions and sales. Section 6 expressly provides that all of its

requirements, including the ventilation requirement, are necessary preconditions to tasting, so the 

entirety of section 6 represents a regulation on the promotion and sale of vapor products at retail.

The requirements of section 5(A) and section 9 also regulate the promotion and sale of 

vapor products at retail to the extent that they relate to vapor shops and section 6. EHC 9(5)(A) 

provides that “[n]o person may use vapor products in an indoor public place or in any place of 

employment,” except as otherwise allowed under section 6. CP at 547. Section 9 grants local health 

officers the authority to enforce EHC chapter 9, including section 6. 

In sum, the provisions contained in section 5(A) that relate to vapor shops, section 6 in its 

entirety, and section 9 as it relates to the enforcement of section 6, amount to regulations on the 

promotion and sale of vapor products at retail by requiring vapor shops to satisfy preconditions in 

order to offer tasting at retail. Although the Alliance bears a heavy burden to show the regulations 

are unconstitutional beyond a reasonable doubt, that burden is met here because of the inescapably 

clear preemption language of RCW 70.345.210(1). 

This application of RCW 70.345.210(1) does not ignore subsection (3) of that statute, 

which grants local governments the authority to regulate indoor use of vaping products. Rather we 

recognize that subsection (1) applies specifically to promotions and sales. Id. Where there is an 
No. 52458-9-II

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apparent conflict between two statutory provisions, the more specific provision is preferred. Am. 

Legion Post No. 149 v. Dep’t of Health, 164 Wn.2d 570, 585-86, 192 P.3d 306 (2008). RCW 

70.345.210(3)’s general grant of authority to regulate indoor use does not swallow up the specific 

limitation contained in subsection (1). Moreover, RCW 70.345.210(3)’s grant of authority is 

expressly “subject to” RCW 70.345.150(b), which “permits tasting and sampling in indoor areas 

of retail outlets.” Reading these provisions together, we conclude the legislature did not intend to 

allow local restrictions on tasting and sampling in retail stores, given the safeguards specifically 

preserving tasting, sampling, and promotions that the legislature built into the statutory scheme.

Because RCW 70.345.210(1) expressly prohibits local governments from adopting or 

enforcing such regulations, we uphold the trial court’s ruling that section 5(A) as it pertains to 

vapor shops, section 6 in its entirety, and section 9 as it relates to the enforcement of section 6, are 

all expressly field preempted by state law.

And because we hold that section 6 unlawfully imposes regulations on the promotion and 

sale of vapor products at retail, we need not address the Alliance’s remaining preemption 

arguments. There is no dispute that the rest of chapter 9 remains valid.

II. INJUNCTION

The Board argues that the trial court erred in granting an injunction because the Alliance 

failed to meet the requirements of Tyler Pipe Industries, Inc. v. Department of Revenue, 96 Wn.2d 

785, 638 P.2d 1213 (1982). We disagree.

As the party seeking a permanent injunction, the Alliance had to show that they had a clear 

legal or equitable right, they had a well-grounded fear of immediate invasion of that right, and the 

challenged regulations were either resulting in or would result in actual and substantial injury. Id.
No. 52458-9-II

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at 792. The Board purports to challenge only the “clear legal or equitable right” element, and does 

not appear to dispute that the Alliance had a well-grounded fear of immediate invasion of its rights 

or that it would suffer actual and substantial injury. Br. of Appellant at 34; Reply Br. of Appellant 

at 13.

Where a party challenges a trial court’s factual findings on appeal, we review those findings 

for substantial evidence. Blackburn v. State, 186 Wn.2d 250, 256, 375 P.3d 1076 (2016).

Substantial evidence is evidence sufficient to persuade a fair-minded person that the premise is 

true. Scott’s Excavating Vancouver, LLC v. Winlock Props., LLC, 176 Wn. App. 335, 341-42, 308 

P.3d 791 (2013). The party challenging the trial court’s factual findings bears the burden of proving 

they are not supported by substantial evidence. Blackburn, 186 Wn.2d at 256. We do not reweigh 

the evidence or substitute our view of the evidence for that of the trial court. Bale v. Allison, 173 

Wn. App. 435, 458, 294 P.3d 789 (2013). We review conclusions of law de novo. Scott’s 

Excavating Vancouver, 176 Wn. App. at 342. 

The Board argues that an injunction was inappropriate because the Alliance did not identify 

a clear legal or equitable right implicated by the Board’s regulations. The Board cites primarily to 

American Legion. There, the petitioner argued that the Washington smoking in public places act, 

chapter 70.160 RCW, violated the Washington Constitution’s protections of privacy rights under 

article I, section 7. Am. Legion, 164 Wn.2d at 596. Our Supreme Court rejected this argument, 

reasoning that because smoking is not a fundamental right, there is no privacy interest in smoking 

in a private facility, and therefore the statute was subject only to rational basis review. Id. at 600-

01. The court also held that the petitioner lacked representational standing to assert a violation of 
No. 52458-9-II

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its members’ liberty interests because smoking was not germane to any of the organization’s 

purposes. Id. at 596.

This case is distinguishable. Unlike in American Legion, which did not involve a request 

for injunction, the Board here has not challenged the Alliance’s standing to challenge these 

regulations and the Alliance has not asserted that vaping is a fundamental right. Nor was it 

necessary for the Alliance to assert or demonstrate that vaping is a fundamental right to obtain an 

injunction; they needed only to demonstrate a clear legal or equitable right. Tyler Pipe, 96 Wn.2d 

at 792.

Here, the relevant statutes enable vapor shop owners to obtain licenses to sell vapor 

products, describe what they must do to maintain those licenses, and include specific requirements 

for vapor shop owners to comply with in order to offer tasting to the public. RCW 70.345.020, 

.030, .100. In addition, the statutes establish that vapor shop owners will not be subject to local 

government regulation “of vapor product promotions and sales at retail.” RCW 70.345.210(1). 

And the use of vapor products is expressly permitted for tasting and sampling in retail outlets. 

RCW 70.345.150. These statutes establish a sufficient legal right to obtain an injunction to block 

enforcement of contrary local regulations.

The Board expressly limited its challenge to the injunction to the legal and equitable right 

prong, and did not argue that the Alliance failed to show substantial injury. However, the Board 

does also argue that the trial court’s findings relevant to the injunction were unsupported by the 

record.5 The trial court found that some of the regulations’ requirements, such as section 6’s 

 

5 At the outset, the Alliance argues that the Board should be precluded from raising this argument 

on appeal because it conceded to the absence of a genuine issue of fact below in its motion 
No. 52458-9-II

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ventilation system requirement and restrictions on tasting and sampling, would harm vapor shops 

by raising operating costs and negatively impacting sales. 

To the extent the Board’s challenge of the trial court’s findings supporting the injunction 

relate to the actual and substantial injury requirement under Tyler Pipe, we conclude that the trial 

court’s findings were sufficient on this front. There is substantial evidence in the record, 

specifically in the declarations of Alliance members, establishing that the regulations were likely 

to negatively impact sales and operating costs.6 This is enough under Tyler Pipe.

7

III. ATTORNEY FEES

The Alliance asks for attorney fees under RCW 4.84.185 on the grounds that the Board’s 

position is frivolous. Even assuming RCW 4.84.185 authorizes an award of attorney fees on 

appeal, it was not frivolous for the Board to defend its own regulations in this case. “‘An appeal . 

. . is frivolous if there are no debatable issues upon which reasonable minds might differ, and it is 

 

requesting the CR 65 hearing. But because the trial court entered findings of fact after this motion, 

the Board is entitled to challenge the trial court’s factual findings on appeal.

6 The Board also argues that portions of these declarations were inadmissible because they 

contained hearsay, lacked foundation, and included unsigned declarations. But the Board does not 

specify which statements it thinks are hearsay. Furthermore, the Alliance’s declarations do not 

contain statements from other declarants, but rather describe some vapor shop owners’ emotional 

reactions when they learned of some of the EHC requirements. Here, there was adequate 

foundation for the declarations because the declarants asserted their declarations were based on 

their own research of the ventilation systems, their conversations with their landlords, and their 

own personal knowledge of the details of their businesses. Finally, the trial court specifically stated 

during the CR 65 hearing that it would not consider unsigned declarations. 

7 The Board also seems to challenge the sufficiency of the evidence in the record to support the 

trial court’s other findings, perhaps to combat the Alliance’s argument below that the regulations 

would result in a de facto ban by putting all vapor shops out of business. But because such findings 

were not necessary to establish actual and substantial injury under Tyler Pipe, we need not address 

these arguments.
No. 52458-9-II

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so totally devoid of merit that there was no reasonable possibility of success.’” Robinson v. Am.

Legion Dep’t of Wash., Inc., 11 Wn. App. 2d 274, 298, 452 P.3d 1254 (2019) (internal quotation 

marks omitted) (alteration in original) (quoting In re Recall of Feetham, 149 Wn.2d 860, 872, 72 

P.3d 741 (2003)). The Board’s arguments presented debatable issues that were not clearly devoid 

of merit.

The Alliance also asks for attorney fees as a matter of equity, citing the Restatement (Third) 

of Restitution and Unjust Enrichment § 39 (2011). Attorney fees in Washington “‘may be 

recovered only when authorized by statute, a recognized ground of equity, or agreement of the 

parties.’” Niccum v. Enquist, 175 Wn.2d 441, 446, 286 P.3d 966 (2012) (internal quotation marks 

omitted) (quoting Wiley v. Rehak, 143 Wn.2d 339, 348, 20 P.3d 404 (2001)). Section 39 of the 

Restatement does not constitute a recognized ground of equity for granting attorney fees in this 

context. We accordingly deny the Alliance’s request for fees.

CONCLUSION

We affirm. We deny the Alliance’s request for attorney fees on appeal. 

Glasgow, J.

We concur:

Maxa, J.

Sutton, A.C.J.